FBI can begin videotaping interrogations, Department of Justice says

A longstanding policy against recordings will be reversed in July.

On Wednesday, The Arizona Republic published a Department of Justice memorandum, which states that the FBI and other agencies should “electronically record statements made by individuals in their custody.” This would reverse a “no-recordings” policy that the FBI has held (unofficially at first, and then officially) since its inception in 1908.

The Drug Enforcement Administration (DEA); the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF); and the United States Marshals Service (USMS) are also encouraged to videotape interrogations.

The memorandum establishes a “Presumption of Recording” which the DoJ says does not “create any rights or benefits, substantive or procedural... by any party against the United States.” Still, the Justice Department urges the agencies to electronically record statements given by people in custody after their arrest but prior to their appearance in court. The policy also “encourages agents and prosecutors to consider taping outside of custodial interrogations,'' such as during the questioning of witnesses, The Arizona Republic reports.

Agents may forgo videotaping an interrogation if the interviewee refuses to be taped, if there is a question of public safety or national security, or if it's not practical to videotape an interview, such as when there are more interviewees than there are video recorders, or if there is an equipment malfunction.

The changes, which will be implemented starting July 11, result from the “collaborative and lengthy efforts of a working group” representing the various agencies and their legal interests. As NPR reports:

Discussions about recording interrogations have been underway at the federal level since early in the Obama administration. And many state and city police already record interviews with suspects because of concerns about abusive practices that could railroad innocent or vulnerable individuals into false confessions.

The decision to videotape interrogations is meant to bolster both federal testimony and that of witnesses as the parties come before juries that increasingly expect video evidence when they hear a case.

I wonder what would happen if an individual in custody would only agree to have his interrogation recorded with terms, such as, "Only if my legal representation is granted unrestricted access to an unedited copy of all recordings."

Agents may forgo videotaping an interrogation if the interviewee refuses to be taped, if there is a question of public safety or national security, or if it's not practical to videotape an interview, such as when there are more interviewees than there are video recorders, or if there is an equipment malfunction.

An exception which swallows the 'rule.' Hope you can work that negative inference to the jury!

a policy against recordings is so odd, and ripe for abuse. but maybe that was the point.

Of course it was the point. If there had been a recording we would know if Todashev went for a mop, a sword, or nothing at all before being shot six times in "self defense."

This article is about interrogations, not raids or outdoor encounters. I haven't heard of LEOs shooting people in interrogation rooms.

This was a friend of the marathon bombers who was shot in his home during the course of an interview by the FBI, not the second brother (i had to google it).

Interesting.

In that case (non-FBI-site interview), this policy change may not prevent that unless the agents are actually required, not just allowed, to record. And they would have to start recording before they approach the interviewee. So, a very different problem.

Agents may forgo videotaping an interrogation if the interviewee refuses to be taped, if there is a question of public safety or national security, or if it's not practical to videotape an interview, such as when there are more interviewees than there are video recorders, or if there is an equipment malfunction… or if they're going to violate the rights of the interviewee and want to avoid evidence coming up later.

I wonder what would happen if an individual in custody would only agree to have his interrogation recorded with terms, such as, "Only if my legal representation is granted unrestricted access to an unedited copy of all recordings."

1) Afaik you dont have to speak in an interrogation, but the police do not need your permission to record you

2) If a recording is made I *think* the defense automatically gets the whole thing in discovery along with all the other evidence against the accused

a policy against recordings is so odd, and ripe for abuse. but maybe that was the point.

Of course it was the point. If there had been a recording we would know if Todashev went for a mop, a sword, or nothing at all before being shot six times in "self defense."

This article is about interrogations, not raids or outdoor encounters. I haven't heard of LEOs shooting people in interrogation rooms.

This was a friend of the marathon bombers who was shot in his home during the course of an interview by the FBI, not the second brother (i had to google it).

And he was a skilled MMA fighter with a history of vicious assaults. It was a bad situation, no doubt, but it was almost certainly NOT the case of an FBI agent killing someone unprovoked/without cause.

a policy against recordings is so odd, and ripe for abuse. but maybe that was the point.

Of course it was the point. If there had been a recording we would know if Todashev went for a mop, a sword, or nothing at all before being shot six times in "self defense."

This article is about interrogations, not raids or outdoor encounters. I haven't heard of LEOs shooting people in interrogation rooms.

That specific incident took place during an interrogation. Supposedly he flipped a table, and tried to attack the agents with what was first reported to be a sword, and was later determined to be a mop, or possibly nothing at all.

a policy against recordings is so odd, and ripe for abuse. but maybe that was the point.

Of course it was the point. If there had been a recording we would know if Todashev went for a mop, a sword, or nothing at all before being shot six times in "self defense."

This article is about interrogations, not raids or outdoor encounters. I haven't heard of LEOs shooting people in interrogation rooms.

This was a friend of the marathon bombers who was shot in his home during the course of an interview by the FBI, not the second brother (i had to google it).

And he was a skilled MMA fighter with a history of vicious assaults. It was a bad situation, no doubt, but it was almost certainly NOT the case of an FBI agent killing someone unprovoked/without cause.

Thing is, no one but those who were there will ever know for certain what happened. A recording, however incomplete, would have shed some light on it.

Given the disparity in power between members of the public and government agencies, and given the necessary amount of power and trust blindly given to the actors of those agencies by the public, it's imperative the public knows those agents do not run agendas that are counter to the public good.

It would finally solve the old dilemma of "Who watches the watchers?" with a very short and neat answer: Everyone.

The fact that they banned it, and don't want to follow it now makes it seem like they put words in the accused mouths, and is pretty fucking scary. how is this legal?

I'm confused to your question as to how its legal? Are you refering to it being banned or that they haven't been required?

The reason they haven't been required is that it wasn't practical till the last decade. As for the ban, it was to avoid false inferences from being made, "why did you chose not to record this interview where they allegedly gave a confession when you've recorded other sessions?" When there could be a legitimate reason for it.

That being said I think this is a great step. It will be a great tool for defense attorneys as well as prosecutors. This is honestly a win/win except for crooked FBI agents.

a policy against recordings is so odd, and ripe for abuse. but maybe that was the point.

Of course it was the point. If there had been a recording we would know if Todashev went for a mop, a sword, or nothing at all before being shot six times in "self defense."

This article is about interrogations, not raids or outdoor encounters. I haven't heard of LEOs shooting people in interrogation rooms.

This was a friend of the marathon bombers who was shot in his home during the course of an interview by the FBI, not the second brother (i had to google it).

And he was a skilled MMA fighter with a history of vicious assaults. It was a bad situation, no doubt, but it was almost certainly NOT the case of an FBI agent killing someone unprovoked/without cause.

The problem is that it was either a killing without cause, or it was a monumental act of incompetence:Killing somebody obviously reduces their value in answering future questions, as well as throwing a bit of a cloud over any past answers you testify about them providing. Letting an interrogation escalate to the point of lethal force, whether or not justified, means your ability to ask potentially touchy questions of potentially unpleasant people is really pretty shoddy. Unfortunate, as the FBI is supposed to do a lot of that.

If at least two FBI agents, with the cooperation of local cops, can't figure out a way of having a chat with a single unarmed man, reasonably safely, they have a real competence problem.

While we are at it why not the ability for the suspect to record the interrogation as well. While I approve this step what would it hurt for suspects to record questioning on their smartphone for instance. The biggest concern being the FBI or whomever certainly could edit interrogation footage.

On one hand, a recording will show the measures police used to elicit the confession, meaning if the police went too far, it can be shown from the recording.

On the other hand, it is also harder to recent a confession since there is now a video recording of it, and if only the confession part is taped (and the methods used to elicit confession are left out), that can be damaging to innocent people forced to confess.

I wonder what would happen if an individual in custody would only agree to have his interrogation recorded with terms, such as, "Only if my legal representation is granted unrestricted access to an unedited copy of all recordings."

1) Afaik you dont have to speak in an interrogation, but the police do not need your permission to record you

2) If a recording is made I *think* the defense automatically gets the whole thing in discovery along with all the other evidence against the accused

That is a fair point regarding equal access to evidence, but there may be circumstances where the recordings could influence how an attorney would advise his [innocent] client prior to a trial or charges being filed.

Regarding attaching terms, the article indicates federal guidance not to record if an individual doesn't agree to it.

a policy against recordings is so odd, and ripe for abuse. but maybe that was the point.

It is the point. The FBI uses 2 agents to interview a suspect or well anyone for a very specific reason its a felony to lie to a federal officer. This is what they got Martha Sterwart on. Basically what they do is have one agent question the suspect and the second agent take notes of the interview in what is called a 302 form. They catch you differing from what is in the 302 they will charge you with lying to a federal officer and they know have a witness which is the note taker and s/he has his note book for testimony.

This article is about interrogations, not raids or outdoor encounters. I haven't heard of LEOs shooting people in interrogation rooms.

I don't have anything with the FBI in particular, but notoriously corrupt Chicago cop Jon Burge and the goons under his command routinely tortured people in the interrogation room with beatings, cuts, and burns to get false confessions: http://en.wikipedia.org/wiki/Jon_Burge

His torture was so prevalent that it was one of the reasons then Governor Ryan commuted all death sentences in Illinois to life without parole and current Governor Quinn pushed to abolish it entirely.

a policy against recordings is so odd, and ripe for abuse. but maybe that was the point.

Of course it was the point. If there had been a recording we would know if Todashev went for a mop, a sword, or nothing at all before being shot six times in "self defense."

This article is about interrogations, not raids or outdoor encounters. I haven't heard of LEOs shooting people in interrogation rooms.

This was a friend of the marathon bombers who was shot in his home during the course of an interview by the FBI, not the second brother (i had to google it).

And he was a skilled MMA fighter with a history of vicious assaults. It was a bad situation, no doubt, but it was almost certainly NOT the case of an FBI agent killing someone unprovoked/without cause.

The problem is that it was either a killing without cause, or it was a monumental act of incompetence:Killing somebody obviously reduces their value in answering future questions, as well as throwing a bit of a cloud over any past answers you testify about them providing. Letting an interrogation escalate to the point of lethal force, whether or not justified, means your ability to ask potentially touchy questions of potentially unpleasant people is really pretty shoddy. Unfortunate, as the FBI is supposed to do a lot of that.

If at least two FBI agents, with the cooperation of local cops, can't figure out a way of having a chat with a single unarmed man, reasonably safely, they have a real competence problem.

If I recall from the This American Life episode, they were at the point of having him sign an confession statement when he allegedly attacked with a length of pipe. Immediately afterward they attempted to deport pretty much everyone connected to him (standard procedure in a terrorism investigation), so it does seem that they got something out of him. I have no idea why they decided to conduct the interrogation in his home, that does seem to be a major mistake.

a policy against recordings is so odd, and ripe for abuse. but maybe that was the point.

Of course it was the point. If there had been a recording we would know if Todashev went for a mop, a sword, or nothing at all before being shot six times in "self defense."

This article is about interrogations, not raids or outdoor encounters. I haven't heard of LEOs shooting people in interrogation rooms.

That specific incident took place during an interrogation. Supposedly he flipped a table, and tried to attack the agents with what was first reported to be a sword, and was later determined to be a mop, or possibly nothing at all.

Sword, mop, length of pipe.

Good thing that these were trained cops and FBI officers who have extensive training in perception and awareness of details. <facepalm>

The reason they haven't been required is that it wasn't practical till the last decade.

I don't see how they couldn't have set up audiotape recorders in interrogation rooms decades ago, or videotape recorders slightly more recently. Given the uselessness of human perceptions and the extremely poor track record of LEOs in accurately and honestly conducting interrogations, they should have cut the latter to fit the limits of the recording devices, rather than permitting them in the absence of the former.

As for the ban, it was to avoid false inferences from being made, "why did you chose not to record this interview where they allegedly gave a confession when you've recorded other sessions?" When there could be a legitimate reason for it.

Well, given the relative likelihoods of "officer uses illegal or ethically questionable tactics to extort confession" and "equipment was broken/inadequate and they couldn't wait to get a new set before questioning for some reason," I know which one I would choose. The FBI and law enforcement in general has made their bed, they should lie in it.

a policy against recordings is so odd, and ripe for abuse. but maybe that was the point.

I thought they did record them. Who knew you couldn't trust movies and TV? WHO KNEW?!?!?

Actually they could record but they had to get it authorized first which is the actual current policy. So it wasn't a complete policy against recordings, it was more of a only record with authorization policy. What this change would do is change the policy so that it can be a routine practice thing without having to get it authorized first.

For the FBI the SAC would defer to the DOJ first through the chain of command and it could take a long time to come back with a decision. With the 302 interview its quicker to get the witness statement while its still fresh in the witness mind, and written confession can happen when the suspect starts to talk. So, as a result not many FBI agents went for the recording authorization, and the 302 interview or written confession is available almost immediately so a case can proceed instead of waiting for authorization of recording. Most times a recording after the fact differs from the 302 or written confession because witness memories fade and suspects change their minds, and the 302 or written confession is available almost immediately so a case can proceed, as a result most requests for recording authorization get denied as not necessary, but there are other reasons also.

Its similar for other government agencies because they all consult the same authority which is the Department Of Justice.

as for movies, TV, even the news media, they tend towards the sensational and appealing with careful wording, presentation, and story line for attracting viewers, readers, and $$$.

I wonder what would happen if an individual in custody would only agree to have his interrogation recorded with terms, such as, "Only if my legal representation is granted unrestricted access to an unedited copy of all recordings."

1) Afaik you dont have to speak in an interrogation, but the police do not need your permission to record you

2) If a recording is made I *think* the defense automatically gets the whole thing in discovery along with all the other evidence against the accused

That only happens if the prosecution is going to use the interrogation in the case

Isn't it ironic that law enforcement agencies are eager to capture records of everything else we do (email, facebook updates, google searches, text messages, telephone calls, yahoo video chats, etc. etc.) - but not when they're in the room, thanks very much...

The reason they haven't been required is that it wasn't practical till the last decade.

I don't see how they couldn't have set up audiotape recorders in interrogation rooms decades ago, or videotape recorders slightly more recently. Given the uselessness of human perceptions and the extremely poor track record of LEOs in accurately and honestly conducting interrogations, they should have cut the latter to fit the limits of the recording devices, rather than permitting them in the absence of the former.

As for the ban, it was to avoid false inferences from being made, "why did you chose not to record this interview where they allegedly gave a confession when you've recorded other sessions?" When there could be a legitimate reason for it.

Well, given the relative likelihoods of "officer uses illegal or ethically questionable tactics to extort confession" and "equipment was broken/inadequate and they couldn't wait to get a new set before questioning for some reason," I know which one I would choose. The FBI and law enforcement in general has made their bed, they should lie in it.